Jeffrey Toobin: SCOTUS Hails Its True Constituency

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Jeffrey Toobin: SCOTUS Hails Its True Constituency

Language tells. And the phrasing the conservative Supreme Court judges used in challenging the Affordable Health care act, as collected her by the New Yorker's Jeffrey Toobin, speaks volumes about who they seem to feel they work for and whom law is supposed to protect. Again and again they speak of the problems the law might pose not for the American people or the uninsured, but for insurance companies.

Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”

The mark of even the roughest society — almost a definition of society — is that it cares for its sick. The country's populace has made it clear that it wants to do so. There appears a real danger a radically activist court will deny both this will and any recognition of humanity's essential connectedness. Profoundly depressing.